[Introduced February 2, 2012; referred to the Committee on Health
and Human Resources; and then to the Committee on Finance.]

____________

A BILL to repeal §49-5-21 of the Code of West Virginia, 1931, as
amended; to repeal §49-6-5a of said code; to amend and reenact
§49-1-3 of said code; to amend and reenact §49-5-13 of said
code; to amend and reenact §49-5D-3 and §49-5D-3a of said
code; to amend said code by adding thereto two new sections,
designated §49-5D-3b and §49-5D-3c; to amend and reenact §49-6-2, §49-6-3, §49-6-5, §49-6-6, §49-6-8 and §49-6-12 of said
code; to amend said code by adding thereto a new section,
designated §49-6-9a; to amend and reenact §49-6D-3 of said
code; to amend and reenact §49-7-1 of said code; and to amend
said code by adding thereto a new section, designated §49-7-36, all relating to child welfare; defining “court appointed
special advocate program”; providing when a juvenile is
ordered into out-of-state placement, the reasons why the
juvenile was not placed in-state be included in the court
order; providing a process for multidisciplinary treatment
planning in cases involving child abuse and neglect; providing
a process for multidisciplinary treatment planning in cases
involving status offense or delinquency; increasing the
continuing education hours required for attorneys appointed in
child abuse and neglect cases; providing that reasonable
efforts to preserve the family are not required when a person
is required by state or federal law to register with a sex
offender registry; providing that the court may modify a
dispositional order when it finds a material change of
circumstances has occurred and such modification is in the
child’s best interests; clarifying that the circuit court of
origin has exclusive jurisdiction over placement of a child in
a child abuse and neglect case; providing a process for
permanency hearings and permanent placement reviews;
authorizing family court to order a child be taken into
emergency custody under certain circumstances and providing a
process for such; providing that any combination of
improvement periods cannot cause a child to be in foster care
more than fifteen months of the most recent twenty-two months
unless the court finds that it is in the child’s best
interests; providing guidelines for unified child and family
case plans; confidentiality of records; and requiring a
quarterly status review hearing and yearly permanency hearings
for transitioning adults.

Be it enacted by the Legislature of West Virginia:

That §49-5-21 of the Code of West Virginia, 1931, as amended,
be repealed; that §49-6-5a of said code be repealed; that §49-1-3
of said code be amended and reenacted; that §49-5-13 of said code
be amended and reenacted; that §49-5D-3 and §49-5D-3a of said code
be amended and enacted; that said code be amended by adding thereto
two new sections, designated §49-5D-3b and §49-5D-3c; that §49-6-2,
§49-6-3, §49-6-5, §49-6-6, §49-6-8 and §49-6-12 of said code be
amended and reenacted; that said code be amended by adding thereto
a new section, designated §49-6-9a; that §49-6D-3 of said code be
amended and reenacted; that §49-7-1 of said code be amended and
reenacted; and that said code be amended by adding thereto a new
section, designated §49-7-36, all to read as follows:

(A) A parent, guardian or custodian who knowingly or
intentionally inflicts, attempts to inflict or knowingly allows
another person to inflict, physical injury or mental or emotional
injury, upon the child or another child in the home; or

(B) Sexual abuse or sexual exploitation; or

(C) The sale or attempted sale of a child by a parent,
guardian or custodian in violation of section sixteen, article
four, chapter forty-eight of this code; or

In addition to its broader meaning, physical injury may
include an injury to the child as a result of excessive corporal
punishment.

(2) "Abusing parent" means a parent, guardian or other
custodian, regardless of his or her age, whose conduct, as alleged
in the petition charging child abuse or neglect, has been adjudged
by the court to constitute child abuse or neglect.

(3) "Battered parent" means a parent, guardian or other
custodian who has been judicially determined not to have condoned
the abuse or neglect and has not been able to stop the abuse or
neglect of the child or children due to being the victim of
domestic violence as defined by section two hundred two, article
twenty-seven, chapter forty-eight of this code, which domestic
violence was perpetrated by the person or persons determined to
have abused or neglected the child or children.

(4) "Child abuse and neglect" or "child abuse or neglect"
means physical injury, mental or emotional injury, sexual abuse,
sexual exploitation, sale or attempted sale or negligent treatment
or maltreatment of a child by a parent, guardian or custodian who
is responsible for the child's welfare, under circumstances which
harm or threaten the health and welfare of the child.

(5) "Child abuse and neglect services" means social services
which are directed toward:

(A) Protecting and promoting the welfare of children who are
abused or neglected;

(C) Preventing the unnecessary removal of children from their
families by identifying family problems and assisting families in
resolving problems which could lead to a removal of children and a
breakup of the family;

(D) In cases where children have been removed from their
families, providing services to the children and the families so as
to reunify such children with their families or some portion
thereof;

(E) Placing children in suitable adoptive homes when
reunifying the children with their families, or some portion
thereof, is not possible or appropriate; and

(F) Assuring the adequate care of children who have been
placed in the custody of the department or third parties.

(6) "Child advocacy center" means a community-based
organization that is a member in good standing with the West
Virginia Child Abuse Network, Inc., and is working to implement the
following program components:

(A) Child-appropriate/child-friendly facility: A child
advocacy center provides a comfortable, private, child-friendly
setting that is both physically and psychologically safe for
clients.

(C) Organizational capacity: A designated legal entity
responsible for program and fiscal operations has been established
and implements basic sound administrative practices.

(D) Cultural competency and diversity: The CAC promotes
policies, practices and procedures that are culturally competent.
Cultural competency is defined as the capacity to function in more
than one culture, requiring the ability to appreciate, understand
and interact with members of diverse populations within the local
community.

(E) Forensic interviews: Forensic interviews are conducted in
a manner which is of a neutral, fact finding nature and coordinated
to avoid duplicative interviewing.

(F) Medical evaluation: Specialized medical evaluation and
treatment are to be made available to CAC clients as part of the
team response, either at the CAC or through coordination and
referral with other specialized medical providers.

(G) Therapeutic intervention: Specialized mental health
services are to be made available as part of the team response,
either at the CAC or through coordination and referral with other
appropriate treatment providers.

(H) Victim support/advocacy: Victim support and advocacy are
to be made available as part of the team response, either at the
CAC or through coordination with other providers, throughout the
investigation and subsequent legal proceedings.

(I) Case review: Team discussion and information sharing
regarding the investigation, case status and services needed by the
child and family are to occur on a routine basis.

(J) Case tracking: CACs must develop and implement a system
for monitoring case progress and tracking case outcomes for team
components: Provided, That a child advocacy center may establish
a safe exchange location for children and families who have a
parenting agreement or an order providing for visitation or custody
of the children that require a safe exchange location.

(7) “Court Appointed Special Advocate Program” means a
community organization that screens, trains and supervises CASA
volunteers to advocate for the best interests of children who are
involved in abuse and neglect proceedings. Court Appointed Special
Advocate Programs will be operated under the following guidelines:

(A) Standards: CASA Programs shall be members in good standing
with the West Virginia Court Appointed Special Advocate
Association, Inc., and the National Court Appointed Special
Advocates Association and adhere to all standards set forth by
these entities.

(B) Organizational capacity: A designated legal entity
responsible for program and fiscal operations has been established
and implements basic sound administrative practice.

(C) Cultural competency and diversity: CASA programs promote
policies, practices and procedures that are culturally competent.
Cultural competency is defined as the capacity to function in more
than one culture, requiring the ability to appreciate, understand
and interact with members of diverse populations within the local
community.

(F) Training: Court Appointed Special Advocates shall serve as
volunteers without compensation and shall receive training
consistent with state and nationally developed standards.

(G) Volunteer Immunity: A court appointed special advocate
volunteer is immune from civil liability to the full extent
provided in the federal Volunteer Protection Act of 1997.

(7)(8) "Imminent danger to the physical well-being of the
child" means an emergency situation in which the welfare or the
life of the child is threatened. Such emergency situation exists
when there is reasonable cause to believe that any child in the
home is or has been sexually abused or sexually exploited, or
reasonable cause to believe that the following conditions threaten
the health or life of any child in the home:

(A) Nonaccidental trauma inflicted by a parent, guardian,
custodian, sibling or a babysitter or other caretaker;

(B) A combination of physical and other signs indicating a
pattern of abuse which may be medically diagnosed as battered child
syndrome;

(G) Sale or attempted sale of the child by the parent,
guardian or custodian; or

(H) The parent, guardian or custodian abuse of alcohol, or
drugs or other controlled substance as defined in section one-hundred one, article one, chapter sixty-a of this code, has
impaired his or her parenting skills to a degree as to pose an
imminent risk to a child’s health or safety.

(8)(9)"Legal guardianship" means the permanent relationship
between a child and caretaker, established by order of the circuit
court having jurisdiction over the child, pursuant to the
provisions of this chapter and chapter forty-eight of this code.

(9)(10)"Multidisciplinary team" means a group of professionals
and paraprofessionals representing a variety of disciplines who
interact and coordinate their efforts to identify, diagnose and
treat specific cases of child abuse and neglect. Multidisciplinary
teams may include, but are not limited to, medical, educational,
child care and law-enforcement personnel, social workers,
psychologists and psychiatrists. Their goal is to pool their
respective skills in order to formulate accurate diagnoses and to
provide comprehensive coordinated treatment with continuity and
follow-up for both parents and children. "Community team" means a
multidisciplinary group which addresses the general problem of
child abuse and neglect in a given community and may consist of
several multidisciplinary teams with different functions.

(10)(11) (A) "Neglected child" means a child:

(i) Whose physical or mental health is harmed or threatened by
a present refusal, failure or inability of the child's parent,
guardian or custodian to supply the child with necessary food,
clothing, shelter, supervision, medical care or education, when
such refusal, failure or inability is not due primarily to a lack
of financial means on the part of the parent, guardian or
custodian; or

(ii) Who is presently without necessary food, clothing,
shelter, medical care, education or supervision because of the
disappearance or absence of the child's parent or custodian;

(B) "Neglected child" does not mean a child whose education is
conducted within the provisions of section one, article eight,
chapter eighteen of this code.

(11)(l2) “Parent” means an individual defined has a parent by
law or on the basis of a biological relationship, marriage to a
person with a biological relationship, legal adoption or other
recognized grounds.

(12)(13) “Parental rights” means any and all rights and
duties regarding a parent to a minor child, including, but not
limited to, custodial rights and visitational rights and rights to
participate in the decisions affecting a minor child.

(13)(14) "Parenting skills" means a parent's competencies in
providing physical care, protection, supervision and psychological
support appropriate to a child's age and state of development.

(14) (15) "Sexual abuse" means:

(A) As to a child who is less than sixteen years of age, any
of the following acts which a parent, guardian or custodian shall
engage in, attempt to engage in, or knowingly procure another
person to engage in, with such child, notwithstanding the fact that
the child may have willingly participated in such conduct or the
fact that the child may have suffered no apparent physical injury
or mental or emotional injury as a result of such conduct:

(i) Sexual intercourse;

(ii) Sexual intrusion; or

(iii) Sexual contact;

(B) As to a child who is sixteen years of age or older, any of
the following acts which a parent, guardian or custodian shall
engage in, attempt to engage in, or knowingly procure another
person to engage in, with such child, notwithstanding the fact that
the child may have consented to such conduct or the fact that the
child may have suffered no apparent physical injury or mental or
emotional injury as a result of such conduct:

(i) Sexual intercourse;

(ii) Sexual intrusion; or

(iii) Sexual contact;

(C) Any conduct whereby a parent, guardian or custodian
displays his or her sex organs to a child, or procures another
person to display his or her sex organs to a child, for the purpose
of gratifying the sexual desire of the parent, guardian or
custodian, of the person making such display, or of the child, or
for the purpose of affronting or alarming the child.

(15)(16) "Sexual contact" means sexual contact as that term
is defined in section one, article eight-b, chapter sixty-one of
this code.

(16)(17) "Sexual exploitation" means an act whereby:

(A) A parent, custodian or guardian, whether for financial
gain or not, persuades, induces, entices or coerces a child to
engage in sexually explicit conduct as that term is defined in
section one, article eight-c, chapter sixty-one of this code;

(B) A parent, guardian or custodian persuades, induces,
entices or coerces a child to display his or her sex organs for the
sexual gratification of the parent, guardian, custodian or a third
person, or to display his or her sex organs under circumstances in
which the parent, guardian or custodian knows such display is
likely to be observed by others who would be affronted or alarmed.

(17)(18) "Sexual intercourse" means sexual intercourse as
that term is defined in section one, article eight-b, chapter
sixty-one of this code.

(18)(19)"Sexual intrusion" means sexual intrusion as that
term is defined in section one, article eight-b, chapter sixty-one
of this code.

(19)(20) “Placement” means any temporary or permanent
placement of a child who is in the custody fo the state in any
foster home, group home or other facility or residence.

(20)(21)"Serious physical abuse" means bodily injury which
creates a substantial risk of death, which causes serious or
prolonged disfigurement, prolonged impairment of health or
prolonged loss or impairment of the function of any bodily organ.

(21)(22) "Siblings" means children who have at least one
biological parent in common or who have been legally adopted by the
same parents or parent.

(22)(23) "Time-limited reunification services" means
individual, group and family counseling, inpatient, residential or
outpatient substance abuse treatment services, mental health
services, assistance to address domestic violence, services
designed to provide temporary child care and therapeutic services
for families, including crisis nurseries and transportation to or
from any such services, provided during fifteen of the most recent
twenty-two months a child has been in foster care, as determined by
the earlier date of the first judicial finding that the child is
subjected to abuse or neglect, or the date which is sixty days
after the child is removed from home.

ARTICLE 5. JUVENILE PROCEEDINGS.

§49-5-13. Disposition of juvenile delinquents; appeal.

(a) In aid of disposition of juvenile delinquents, the
juvenile probation officer assigned to the court shall, upon
request of the court, make an investigation of the environment of
the juvenile and the alternative dispositions possible. The court,
upon its own motion, or upon request of counsel, may order a
psychological examination of the juvenile. The report of such
examination and other investigative and social reports shall not be
made available to the court until after the adjudicatory hearing.
Unless waived, copies of the report shall be provided to counsel
for the petitioner and counsel for the juvenile no later than
seventy-two hours prior to the dispositional hearing.

(b) Following the adjudication, the court shall conduct the
dispositional proceeding, giving all parties an opportunity to be
heard. In disposition the court shall not be limited to the relief
sought in the petition and shall, in electing from the following
alternatives, consider the best interests of the juvenile and the
welfare of the public:

(1) Dismiss the petition;

(2) Refer the juvenile and the juvenile's parent or custodian
to a community agency for needed assistance and dismiss the
petition;

(3) Upon a finding that the juvenile is in need of extra-parental supervision: (A) Place the juvenile under the supervision
of a probation officer of the court or of the court of the county
where the juvenile has his or her usual place of abode or other
person while leaving the juvenile in custody of his or her parent
or custodian; and (B) prescribe a program of treatment or therapy
or limit the juvenile's activities under terms which are reasonable
and within the child's ability to perform, including participation
in the litter control program established pursuant to section
three, article fifteen-a, chapter twenty-two of this code or other
appropriate programs of community service;

(4) Upon a finding that a parent or custodian is not willing
or able to take custody of the juvenile, that a juvenile is not
willing to reside in the custody of his or her parent or custodian
or that a parent or custodian cannot provide the necessary
supervision and care of the juvenile, the court may place the
juvenile in temporary foster care or temporarily commit the
juvenile to the department or a child welfare agency. The court
order shall state that continuation in the home is contrary to the
best interest of the juvenile and why; and whether or not the
department made a reasonable effort to prevent the placement or
that the emergency situation made such efforts unreasonable or
impossible. Whenever the court transfers custody of a youth to the
department, an appropriate order of financial support by the
parents or guardians shall be entered in accordance with section
five, article seven of this chapter and guidelines promulgated by
the Supreme Court of Appeals;

(5) Upon a finding that the best interests of the juvenile or
the welfare of the public require it, and upon an adjudication of
delinquency pursuant to subdivision (1), section four, article one
of this chapter, the court may commit the juvenile to the custody
of the Director of the Division of Juvenile Services for placement
in a juvenile services facility for the treatment, instruction and
rehabilitation of juveniles: Provided, That the court maintains
discretion to consider alternative sentencing arrangements.
Notwithstanding any provision of this code to the contrary, in the
event that the court determines that it is in the juvenile's best
interests or required by the public welfare to place the juvenile
in the custody of the Division of Juvenile Services, the court
shall provide the Division of Juvenile Services with access to all
relevant court orders and records involving the underlying offense
or offenses for which the juvenile was adjudicated delinquent,
including sentencing and presentencing reports and evaluations, and
provide the Division with access to school records, psychological
reports and evaluations, medical reports and evaluations or any
other such records as may be in the court's possession as would
enable the Division of Juvenile Services to better assess and
determine the appropriate counseling, education and placement needs
for the juvenile offender. Commitments shall not exceed the maximum
term for which an adult could have been sentenced for the same
offense and any such maximum allowable sentence to be served in a
juvenile correctional facility may take into account any time
served by the juvenile in a detention center pending adjudication,
disposition or transfer. The order shall state that continuation in
the home is contrary to the best interests of the juvenile and why;
and whether or not the state department made a reasonable effort to
prevent the placement or that the emergency situation made such
efforts unreasonable or impossible; or

(6) After a hearing conducted under the procedures set out in
subsections (c) and (d), section four, article five, chapter
twenty-seven of this code, commit the juvenile to a mental health
facility in accordance with the juvenile's treatment plan; the
Director of the mental health facility may release a juvenile and
return him or her to the court for further disposition. The order
shall state that continuation in the home is contrary to the best
interests of the juvenile and why; and whether or not the state
department made a reasonable effort to prevent the placement or
that the emergency situation made such efforts unreasonable or
impossible.

(c) In any case in which the court decides to order the
juvenile placed in an out-of-state facility or program, it shall
set forth in the order directing the placement the reasons the
juvenile was not placed in an in-state facility or program.

(c)(d) The disposition of the juvenile shall not be affected
by the fact that the juvenile demanded a trial by jury or made a
plea of denial. Any dispositional order is subject to appeal to the
Supreme Court of Appeals.

(d)(e) Following disposition, the court shall inquire whether
the juvenile wishes to appeal and the response shall be
transcribed; a negative response shall not be construed as a
waiver. The evidence shall be transcribed as soon as practicable
and made available to the juvenile or his or her counsel, if the
same is requested for purposes of further proceedings. A judge may
grant a stay of execution pending further proceedings.

(e)(f) Notwithstanding any other provision of this code to
the contrary, if a juvenile charged with delinquency under this
chapter is transferred to adult jurisdiction and there tried and
convicted, the court may make its disposition in accordance with
this section in lieu of sentencing such person as an adult.

ARTICLE 5D. MULTIDISCIPLINARY TEAMS.

§49-5D-3. Multidisciplinary treatment planning process.

(a) (1) A multidisciplinary treatment planning process for
cases initiated pursuant to articles five and six of this chapter
shall be established within each county of the state, either
separately or in conjunction with a contiguous county, by the
secretary of the department with advice and assistance from the
prosecutor's advisory council as set forth in section four, article
four, chapter seven of this code. The Division of Juvenile Services
shall establish a similar treatment planning process for
delinquency cases in which the juvenile has been committed to theitscustody of the director of the divisioncustody, including
those cases in which the juvenile has been committed for
examination and diagnosis.

(2) The provisions of this section do not require a
multidisciplinary team meeting to be held prior to temporarily
placing a child or juvenile out-of-home under exigent circumstances
or upon a court order placing a juvenile in a facility operated by
the Division of Juvenile Services.

(2)(b) The case manager in the Department of Health and Human
Resources for the child, family or juvenile or the case manager in
the Division of Juvenile Services for a juvenile shall convene a
treatment team in each case when it is required pursuant to this
article.Treatment teams shall assess, plan and implement a
comprehensive, individualized service plan for children who are
victims of abuse or neglect and their families when a judicial
proceeding has been initiated involving the child or children for
juveniles and their families involved in status offense or
delinquency proceedings when, in a status offense proceeding, the
court refers the juvenile for services pursuant to sections eleven
and eleven-a, article five of this chapter and when, in a
delinquency proceeding, the court is considering placing the
juvenile in the department's custody or placing the juvenile out of
home at the department's expense pursuant to the provisions of
section thirteen of said article. In any such status offense or
delinquency case, the juvenile probation officer shall notify the
local office of the Department of Health and Human Resources and
the Division of Juvenile Services at least five working days before
the court proceeding in order to allow the multidisciplinary
treatment team to convene and develop a comprehensive
individualized service plan for the child: Provided, That such
notice is not required in cases where the child is already in state
custody or there exist exigent circumstances which justify taking
the child immediately into custody without a judicial proceeding.
In developing an individualized service plan for a child, the team
shall utilize a uniform comprehensive assessment of the child. The
department shall adopt a standard uniform comprehensive assessment
instrument or protocol to be used by treatment teams.

(3) Prior to disposition, in each case in which a treatment
planning team has been convened, the team shall advise the court as
to the types of services the team has determined are needed and the
type of placement, if any, which will best serve the needs of the
child. If the team determines that an out-of-home placement will
best serve the needs of the child, the team shall first consider
placement at facilities or programs located within the state. The
team may only recommend placement in an out-of-state facility if it
concludes, after considering the best interests and overall needs
of the child, that there are no available and suitable in-state
facilities which can satisfactorily meet the specific needs of the
child.

(b) Each treatment team shall be convened by the child's or
family's case manager in the Department of Health and Human
Resources or the Division of Juvenile Services if the juvenile has
been ordered into its custody for examination and diagnosis
pursuant to section thirteen, article five of this chapter. The
treatment team shall consist of the child's custodial parent or
parents, guardian or guardians, other immediate family members, the
attorney or attorneys representing the child, the parent or parents
of the child, the child's attorney, the guardian ad litem, if any,
the prosecuting attorney or his or her designee, a member of a
child advocacy center when the child has been processed through the
child advocacy center program(s) and, where appropriate to the
particular case under consideration and available, a court-appointed special advocate, a member of a child advocacy center, an
appropriate school official and any other person or an agency
representative who may assist in providing recommendations for the
particular needs of the child and family. The child may participate
in multidisciplinary treatment team meetings if such is deemed
appropriate by the multidisciplinary treatment team. For purposes
of delinquency proceedings, the juvenile probation officer shall be
a member of the treatment team. Any person authorized by the
provisions of this chapter to convene a multidisciplinary team
meeting may seek and receive an order of the circuit court setting
such meeting and directing attendance. Members of the
multidisciplinary team may participate in team meetings by
telephone or video conferencing: Provided, That a member of a child
advocacy center should participate in any case when appropriate to
the particular case under consideration.Provided, That the
provisions of this subsection do not prevent the respective
agencies from designating a person other than the case manager as
a facilitator for treatment team meetings.

(c) The treatment team shall coordinate its activities and
membership with local family resource networks and coordinate with
other local and regional child and family service planning
committees to assure the efficient planning and delivery of child
and family services on a local and regional level.

(d) State, county and local agencies shall provide the
multidisciplinary treatment teams with any information requested in
writing by the team as allowable by law or upon receipt of a
certified copy of the circuit court's order directing said agencies
to release information in its possession relating to the child. The
team shall assure that all information received and developed in
connection with the provisions of this article remain confidential.
For purposes of this section, the term “confidential” shall be
construed in accordance with the provisions of section one, article
seven of this chapter.The multidisciplinary treatment team shall
be afforded access to information in the possession of the
Department of Health and Human Services, Division of Juvenile
Services, law-enforcement agencies, and other state, county, and
local agencies; and the agencies shall cooperate in the sharing of
information, as may be provided in sections three(d) and six,
article five-D and section one, article seven, all of chapter
forty-nine, and any other relevant provision of law. Any
multidisciplinary team member who acquires confidential information
shall not disclose such information except as permitted by the
provisions of this code or court rules.

(e) Nothing in this section may be construed to require a
multidisciplinary team meeting to be held prior to temporarily
placing a child out-of-home under exigent circumstances or upon a
court order placing the juvenile in a juvenile facility operated by
the Division of Juvenile Services.

§49-5D-3a. Recommendation of team to the court; hearing
requirement; required findings.

(a) In any case in which a multidisciplinary treatment team
develops an individualized service plan for a child or family
pursuant to the provisions of section three of this article, the
court shall review the proposed service plan to determine if
implementation of the plan is in the child's best interests. If the
multidisciplinary team cannot agree on a plan or if the court
determines not to adopt the team's recommendations, it shall, upon
motion or sua sponte, schedule and hold within ten days of such
determination, and prior to the entry of an order placing the child
in the custody of the department or in an out-of-home setting, a
hearing to consider evidence from the team as to its rationale for
the proposed service plan. If, after a hearing held pursuant to the
provisions of this section, the court does not adopt the teams's
recommended service plan, it shall make specific written findings
as to why the team's recommended service plan was not adopted.

(b) In any case in which the court decides to order the child
placed in an out-of-state facility or program it shall set forth in
the order directing the placement the reasons why the child was not
placed in an in-state facility or program.

(c) Any member of the multidisciplinary treatment team who
disagrees with recommendations of the team may inform the court of
his or her own recommendations and objections to the team’s
recommendations. The recommendations and objections of the
dissenting team member may be made in a hearing on the record, made
in writing and served upon each team member and filed with the
court, and indicated in the case plan, or both made in writing and
indicated in the case plan. Upon receiving objections, the court
will conduct a hearing pursuant to paragraph (a) of this section.

(a) Within thirty days of the initiation of a judicial
proceeding pursuant to article six of this chapter, the Department
of Health and Human Services shall convene a multidisciplinary
treatment team to assess, plan and implement a comprehensive,
individualized service plan for children who are victims of abuse
or neglect and their families. The multidisciplinary team shall
obtain and utilize any assessments for the children or the adult
respondents that it deems necessary to assist in the development of
such a plan.

(b) In a case initiated pursuant to article six of this
chapter, the treatment team shall consist of the child or family’s
case manager in the Department of Health and Human Resources, the
adult respondent or respondents, the child’s parent or parents,
guardians, any copetitioners, custodial relatives of the child,
foster or preadoptive parents, any attorney representing an adult
respondent or other member of the treatment team, the child’s
counsel or the guardian ad litem, the prosecuting attorney or his
or her designee, a member of a child advocacy center when the child
has been processed through the child advocacy center program or
programs or it is otherwise appropriate that a member of the child
advocacy center participate, any court-appointed special advocate
assigned to a case, any other person entitled to notice and the
right to be heard, an appropriate school official, and any other
person or agency representative who may assist in providing
recommendations for the particular needs of the child and family,
including domestic violence service providers. The child may
participate in multidisciplinary treatment team meetings if the
child’s participation is deemed appropriate by the
multidisciplinary treatment team. Unless otherwise ordered by the
court, a party whose parental rights have been terminated and his
or her attorney shall not be given notice of a multidisciplinary
treatment team meeting and does not have the right to participate
in any treatment team meeting.

(c) Prior to disposition in each case which a treatment
planning team has been convened, the team shall advise the court as
to the types of services the team has determined are needed and the
type of placement, if any, which will best serve the needs of the
child. If the team determines that an out-of-home placement will
best serve the needs of the child, the team shall first consider
placement at facilities or programs located within the state. The
team may only recommend placement in an out-of-state facility if it
concludes, after considering the best interests and overall needs
of the child, that there are no available and suitable in-state
facilities which can satisfactorily meet the specific needs of the
child.

(d) The multidisciplinary treatment team shall submit written
reports to the court as required by the rules governing this type
of proceeding or by the court, and shall meet as often as deemed
necessary but at least every three months until the case is
dismissed from the docket of the court. The multidisciplinary
treatment team shall be available for status conferences and
hearings as required by the court.

(e) If a respondent or copetitioner admits the underlying
allegations of child abuse or neglect, or both abuse and neglect,
in the multidisciplinary treatment planning process, his or her
statements not be used in any subsequent criminal proceeding
against him or her, except for perjury or false swearing.

(a) (1) When a juvenile is adjudicated as a status offender
pursuant to section eleven-d, article five of this chapter, the
Department of Health and Human Resources shall promptly convene a
multidisciplinary treatment team and conduct an assessment,
utilizing a standard uniform comprehensive assessment instrument or
protocol, to determine the juvenile’s mental and physical
condition, maturity and education level, home and family
environment, rehabilitative needs and recommended service plan.
Upon completion of the assessment, the treatment team shall prepare
and implement a comprehensive, individualized service plan for the
juvenile.

(2) When a juvenile is adjudicated as a delinquent or has been
granted an improvement period pursuant to section nine, article
five of this chapter, the court, either upon its own motion or
motion of a party, may require the Department of Health and Human
Resources to convene a multidisciplinary treatment team and conduct
an assessment, utilizing a standard uniform comprehensive
assessment instrument or protocol, to determine the juvenile’s
mental and physical condition, maturity and education level, home
and family environment, rehabilitative needs and recommended
service plan. A referral to the Department of Health and Human
Resources to convene a multidisciplinary treatment team and to
conduct such an assessment shall be made when the court is
considering placing the juvenile in the department’s custody or
placing the juvenile out-of-home at the department’s expense
pursuant to section thirteen, article five of this chapter. In any
delinquency proceeding in which the court requires the Department
of Health and Human Resources to convene a multidisciplinary
treatment team, the probation officer shall notify the department
at least fifteen working days before the court proceeding in order
to allow the department sufficient time to convene and develop an
individualized service plan for the juvenile.

(3) When a juvenile has been adjudicated and committed to the
custody of the director of the Division of Juvenile Services,
including those cases in which the juvenile has been committed for
examination and diagnosis, the Division of Juvenile Services shall,
promptly convene a multidisciplinary treatment team and conduct an
assessment, utilizing a standard uniform comprehensive assessment
instrument or protocol, to determine the juvenile’s mental and
physical condition, maturity and education level, home and family
environment, rehabilitative needs and recommended service plan.
Upon completion of the assessment, the treatment team shall prepare
and implement a comprehensive, individualized service plan for the
juvenile.

(4) (a) The rules of juvenile procedure shall govern the
procedure for obtaining an assessment of a juvenile, preparing an
individualized service plan and submitting the plan and assessment
to the court.

(b) In juvenile proceedings conducted pursuant to article five
of this chapter, the treatment team shall consist of the juvenile,
the juvenile’s case manager in the Department of Health and Human
Resources or the Division of Juvenile Services, the juvenile’s
parent or parents, guardian or guardians or custodial relatives,
the juvenile’s attorney, any attorney representing a member of the
treatment team, the prosecuting attorney or his or her designee, an
appropriate school official and any other person or agency
representative who may assist in providing recommendations for the
particular needs of the juvenile and family, including domestic
violence service providers. In delinquency proceedings, the
probation officer shall be a member of a treatment team. When
appropriate, the juvenile case manager in the Department of Health
and Human Resources and the Division of Juvenile Services shall
cooperate in conducting multidisciplinary treatment team meetings
when it is in the juvenile’s best interest.

(c) Prior to disposition, in each case in which a treatment
planning team has been convened, the team shall advise the court as
to the types of services the team has determined are needed and
type of placement, if any, which will best serve the needs of the
child. If the team determines that an out-of-home placement will
best serve the needs of the child, the team shall first consider
placement at facilities or programs located within the state. The
team may only recommend placement in an out-of-state facility if it
concludes, after considering the best interests and overall needs
of the child, that there are no available and suitable in-state
facilities which can satisfactorily meet the specific needs of the
child.

(d) The multidisciplinary treatment team shall submit written
reports to the court as required by applicable law or by the court,
shall meet with the court at least every three months, as long as
the juvenile remains in the legal or physical custody of the state,
and shall be available for status conferences and hearings as
required by the court.

(e) In any case in which a juvenile has been placed out of his
or her home except for a temporary placement in a shelter or
detention center, the multidisciplinary treatment team shall
cooperate with the state agency in whose custody the juvenile is
placed to develop an after-care plan. The rules of juvenile
procedure and section twenty, article five, chapter forty-nine of
the code shall govern the development of an after-care plan for a
juvenile, the submission of the plan to the court and any objection
to the after-care plan.

(f) If a juvenile respondent admits the underlying allegations
of the case initiated pursuant to article five, chapter forty-nine
of this code in the multidisciplinary treatment planning process,
his or her statements shall not be used in any juvenile or criminal
proceedings against the juvenile, except for perjury or false
swearing.

(a) In any proceeding under the provisions of this article,
the child, his or her or parents and his or her legally established
custodian or other persons standing in loco parentis to him or her
shall have the right to be represented by counsel at every stage of
the proceedings and shall be informed by the court of their right
to be so represented and that if they cannot pay for the services
of counsel, that counsel will be appointed. Counsel of the child
shall be appointed in the initial order. If the order gives
physical custody of the child to the state, the initial order shall
appoint counsel for the parents or, if the parents are separated or
divorced, the parents or parent or other person or persons standing
in loco parentis who had physical custody of the child for the
majority of the time in the period immediately preceding the
petition: Provided, That such representation shall only continue
after the first appearance if the parent or other persons standing
in loco parentis cannot pay for the services of counsel. Counsel
for other parties shall only be appointed upon request for
appointment of counsel. If the requesting parties have not retained
counsel and cannot pay for the services of counsel, the court
shall, by order entered of record, appoint an attorney or attorneys
to represent the other party or parties and so inform the parties.
Under no circumstances may the same attorney represent both the
child and the other party or parties, nor shall the same attorney
represent both parents or custodians. However, one attorney may
represent both parents or custodians where both parents or
guardians consent to this representation after the attorney fully
discloses to the client the possible conflict and where the
attorney assures the court that she or he is able to represent each
client without impairing her or his professional judgment; however,
if more than one child from a family is involved in the proceeding,
one attorney may represent all the children. A parent who has been
judicially determined to be battered shall be entitled to his or
her own attorney. The court may allow to each attorney so appointed
a fee in the same amount which appointed counsel can receive in
felony cases. AnyEffective July 1, 2012, any attorney appointed
pursuant to this section shall by the first day of July, one
thousand nine hundred ninety-three, and three hours per year each
year thereafter, receive a minimum of threeeight hours of
continuing legal education training on representation of children,
child abuse and neglectper reporting period on child abuse and
neglect procedure and practice. In addition to this requirement,
after July 1, 2013, any attorney appointed to represent a child
must first complete training on representation of children that is
approved by the administrative office of the Supreme Court of
Appeals. The Supreme Court of Appeals shall develop procedures for
approval and certification of training required under this section
by July 1, 2012: Provided, however, That where no attorney who has
completed this training is available for such appointment, the
court shall appoint a competent attorney with demonstrated
knowledge of child welfare law to represent the parent or child.
Any attorney appointed pursuant to this section shall perform all
duties required as an attorney licensed to practice law in the
State of West Virginia.

(b) In any proceeding brought pursuant to the provisions of
this article, the court may grant any respondent an improvement
period in accord with the provisions of this article. During such
period, the court may require temporary custody with a responsible
person which has been found to be a fit and proper person for the
temporary custody of the child or children or the state department
or other agency during the improvement period. An order granting
such improvement period shall require the department to prepare and
submit to the court a family case plan in accordance with the
provisions of section three, article six-d of this chapter.

(c) In any proceeding pursuant to the provisions of this
article, the party or parties having custodial or other parental
rights or responsibilities to the child shall be afforded a
meaningful opportunity to be heard, including the opportunity to
testify and to present and cross-examine witnesses. The petition
shall not be taken as confessed. A transcript or recording shall be
made of all proceedings unless waived by all parties to the
proceeding. The rules of evidence shall apply. Where relevant, the
court shall consider the efforts of the state department to remedy
the alleged circumstances. At the conclusion of the hearing, the
court shall make a determination based upon the evidence and shall
make findings of fact and conclusions of law as to whether such
child is abused or neglected and, if applicable, whether the
parent, guardian, or custodian is a battered parent, all of which
shall be incorporated into the order of the court. The findings
must be based upon conditions existing at the time of the filing of
the petition and proven by clear and convincing proof.

(d) Any petition filed and any proceeding held under the
provisions of this article shall, to the extent practicable, be
given priority over any other civil action before the court, except
proceedings under article two-a, chapter forty-eight of this code
and actions in which trial is in progress. Any petition filed under
the provisions of this article shall be docketed immediately upon
filing. Any hearing to be held at the end of an improvement period
and any other hearing to be held during any proceedings under the
provisions of this article shall be held as nearly as practicable
on successive days and, with respect to said hearing to be held at
the end of an improvement period, shall be held as close in time as
possible after the end of said improvement period and shall be held
within sixty days of the termination of such improvement period.(e) Following the court's determination, it shall be inquired
of the parents or custodians whether or not appeal is desired and
the response transcribed. A negative response shall not be
construed as a waiver. The evidence shall be transcribed and made
available to the parties or their counsel as soon as practicable,
if the same is required for purposes of further proceedings. If an
indigent person intends to pursue further proceedings, the court
reporter shall furnish a transcript of the hearing without cost to
the indigent person if an affidavit is filed stating that he or she
cannot pay therefor.

(a) Upon the filing of a petition, the court may order that
the child alleged to be an abused or neglected child be delivered
for not more than ten days into the custody of the state department
or a responsible person found by the court to be a fit and proper
person for the temporary care of the child pending a preliminary
hearing, if it finds that:

(1) There exists imminent danger to the physical well-being of
the child; and

(2) There are no reasonably available alternatives to removal
of the child, including, but not limited to, the provision of
medical, psychiatric, psychological or homemaking services in the
child's present custody: Provided, That where the alleged abusing
person, if known, is a member of a household, the court shall not
allow placement pursuant to this section of the child or children
in said home unless the alleged abusing person is or has been
precluded from visiting or residing in said home by judicial order.
In a case where there is more than one child in the home, or in the
temporary care, custody or control of the alleged offending parent,
the petition shall so state, and notwithstanding the fact that the
allegations of abuse or neglect may pertain to less than all of
such children, each child in the home for whom relief is sought
shall be made a party to the proceeding. Even though the acts of
abuse or neglect alleged in the petition were not directed against
a specific child who is named in the petition, the court shall
order the removal of such child, pending final disposition, if it
finds that there exists imminent danger to the physical well-being
of the child and a lack of reasonable available alternatives to
removal. The initial order directing such custody shall contain an
order appointing counsel and scheduling the preliminary hearing,
and upon its service shall require the immediate transfer of
custody of such child or children to the department or a
responsible relative which may include any parent, guardian, or
other custodian. The court order shall state:

(A) That continuation in the home is contrary to the best
interests of the child and why; and

(B) Whether or not the department made reasonable efforts to
preserve the family and prevent the placement or that the emergency
situation made such efforts unreasonable or impossible. The order
may also direct any party or the department to initiate or become
involved in services to facilitate reunification of the family.(b) Whether or not the court orders immediate transfer of
custody as provided in subsection (a) of this section, if the facts
alleged in the petition demonstrate to the court that there exists
imminent danger to the child, the court may schedule a preliminary
hearing giving the respondents at least five days' actual notice.
If the court finds at the preliminary hearing that there are no
alternatives less drastic than removal of the child and that a
hearing on the petition cannot be scheduled in the interim period,
the court may order that the child be delivered into the temporary
custody of the department or a responsible person or agency found
by the court to be a fit and proper person for the temporary care
of the child for a period not exceeding sixty days: Provided, That
the court order shall state:

(1) That continuation in the home is contrary to the best
interests of the child and set forth the reasons therefor;

(2) whether or not the department made reasonable efforts to
preserve the family and to prevent the child's removal from his or
her home;

(3) Whether or not the department made reasonable efforts to
preserve the family and to prevent the placement or that the
emergency situation made such efforts unreasonable or impossible;
and

(4) What efforts should be made by the department, if any, to
facilitate the child's return home: Provided, however, That if the
court grants an improvement period as provided in section twelve of
this article, the sixty-day limit upon temporary custody is waived.(c) If a child or children shall, in the presence of a child
protective service worker, be in an emergency situation which
constitutes an imminent danger to the physical well-being of the
child or children, as that phrase is defined in section three,
article one of this chapter, and if such worker has probable cause
to believe that the child or children will suffer additional child
abuse or neglect or will be removed from the county before a
petition can be filed and temporary custody can be ordered, the
worker may, prior to the filing of a petition, take the child or
children into his or her custody without a court order: Provided,
That after taking custody of such child or children prior to the
filing of a petition, the worker shall forthwith appear before a
circuit judge or a juvenile referee of the county wherein custody
was taken, or if no such judge or referee be available, before a
circuit judge or a juvenile referee of an adjoining county, and
shall immediately apply for an order ratifying the emergency
custody of the child pending the filing of a petition. The circuit
court of every county in the state shall appoint at least one of
the magistrates of the county to act as a juvenile referee, who
shall serve at the will and pleasure of the appointing court, and
who shall perform the functions prescribed for such position by the
provisions of this subsection. The parents, guardians or custodians
of the child or children may be present at the time and place of
application for an order ratifying custody, and if at the time the
child or children are taken into custody by the worker, the worker
knows which judge or referee is to receive the application, the
worker shall so inform the parents, guardians or custodians. The
application for emergency custody may be on forms prescribed by the
Supreme Court of Appeals or prepared by the prosecuting attorney or
the applicant, and shall set forth facts from which it may be
determined that the probable cause described above in this
subsection exists. Upon such sworn testimony or other evidence as
the judge or referee deems sufficient, the judge or referee may
order the emergency taking by the worker to be ratified. If
appropriate under the circumstances, the order may include
authorization for an examination as provided for in subsection (b),
section four of this article. If a referee issues such an order,
the referee shall by telephonic communication have such order
orally confirmed by a circuit judge of the circuit or an adjoining
circuit who shall on the next judicial day enter an order of
confirmation. If the emergency taking is ratified by the judge or
referee, emergency custody of the child or children shall be vested
in the department until the expiration of the next two judicial
days, at which time any such child taken into emergency custody
shall be returned to the custody of his or her parent or guardian
or custodian unless a petition has been filed and custody of the
child has been transferred under the provisions of section three of
this article.

(d) For purposes of the court's consideration of temporary
custody pursuant to the provisions of subsection (a) or (b) of this
section, the department is not required to make reasonable efforts
to preserve the family if the court determines:

(1) The parent has subjected the child, another child of the
parent, or any other child residing in the same household or under
the temporary or permanent custody of the parent to aggravated
circumstances which include, but are not limited to, abandonment,
torture, chronic abuse and sexual abuse;

(2) The parent has:

(A) Committed murder of the child's other parent, guardian or
custodian, another child of the parent, or any other child residing
in the same household or under the temporary or permanent custody
of the parent;

(B) Committed voluntary manslaughter of the child's other
parent, guardian or custodian, another child of the parent, or any
other child residing in the same household or under the temporary
or permanent custody of the parent;

(C) Attempted or conspired to commit such a murder or
voluntary manslaughter or been an accessory before or after the
fact to either such crime;

(D) Committed unlawful or malicious wounding that results in
serious bodily injury to the child, the child's other parent,
guardian or custodian, to another child of the parent, or any other
child residing in the same household or under the temporary or
permanent custody of the parent; or

(E) Committed sexual assault or sexual abuse of the child, the
child's other parent, guardian, or custodian, another child of the
parent, or any other child residing in the same household or under
the temporary or permanent custody of the parent; or

(F) Required by state or federal law to register with a sex
offender registry.

(3) The parental rights of the parent to another child have
been terminated involuntarily.

§49-6-5. Disposition of neglected or abused children;

(a) Following a determination pursuant to section two of this
article wherein the court finds a child to be abused or neglected,
the department shall file with the court a copy of the child's case
plan, including the permanency plan for the child. The term case
plan means a written document that includes, where applicable, the
requirements of the family case plan as provided for in section
three, article six-d of this chapter and that also includes at
least the following: A description of the type of home or
institution in which the child is to be placed, including a
discussion of the appropriateness of the placement and how the
agency which is responsible for the child plans to assure that the
child receives proper care and that services are provided to the
parents, child and foster parents in order to improve the
conditions in the parent(s) home; facilitate return of the child to
his or her own home or the permanent placement of the child; and
address the needs of the child while in foster care, including a
discussion of the appropriateness of the services that have been
provided to the child. The term “permanency plan” refers to that
part of the case plan which is designed to achieve a permanent home
for the child in the least restrictive setting available. The plan
must document efforts to ensure that the child is returned home
within approximate time lines for reunification as set out in the
plan. Reasonable efforts to place a child for adoption or with a
legal guardian may be made at the same time reasonable efforts are
made to prevent removal or to make it possible for a child to
safely return home. If reunification is not the permanency plan for
the child, the plan must state why reunification is not appropriate
and detail the alternative placement for the child to include
approximate time lines for when such placement is expected to
become a permanent placement. This case plan shall serve as the
family case plan for parents of abused or neglected children.
Copies of the child's case plan shall be sent to the child's
attorney and parent, guardian or custodian or their counsel at
least five days prior to the dispositional hearing. The court shall
forthwith proceed to disposition giving both the petitioner and
respondents an opportunity to be heard. The court shall give
precedence to dispositions in the following sequence:

(1) Dismiss the petition;

(2) Refer the child, the abusing parent, the battered parent
or other family members to a community agency for needed assistance
and dismiss the petition;

(3) Return the child to his or her own home under supervision
of the department;

(4) Order terms of supervision calculated to assist the child
and any abusing parent or battered parent or parents or custodian
which prescribe the manner of supervision and care of the child and
which are within the ability of any parent or parents or custodian
to perform;

(5) Upon a finding that the abusing parent or battered parent
or parents are presently unwilling or unable to provide adequately
for the child's needs, commit the child temporarily to the custody
of the state department, a licensed private child welfare agency or
a suitable person who may be appointed guardian by the court. The
court order shall state:

(A) That continuation in the home is contrary to the best
interests of the child and why;

(B) Whether or not the department has made reasonable efforts,
with the child's health and safety being the paramount concern, to
preserve the family, or some portion thereof, and to prevent or
eliminate the need for removing the child from the child's home and
to make it possible for the child to safely return home;

(C) What efforts were made or that the emergency situation
made such efforts unreasonable or impossible; and

(D) The specific circumstances of the situation which made
such efforts unreasonable if services were not offered by the
department. The court order shall also determine under what
circumstances the child's commitment to the department shall
continue. Considerations pertinent to the determination include
whether the child should:

(i) Be continued in foster care for a specified period;

(ii) Be considered for adoption;

(iii) Be considered for legal guardianship;

(iv) Be considered for permanent placement with a fit and
willing relative; or

(v) Be placed in another planned permanent living arrangement,
but only in cases where the department has documented to the
circuit court a compelling reason for determining that it would not
be in the best interests of the child to follow one of the options
set forth in subparagraphs (i), (ii), (iii) or (iv) of this
paragraph. The court may order services to meet the special needs
of the child. Whenever the court transfers custody of a youth to
the department, an appropriate order of financial support by the
parents or guardians shall be entered in accordance with section
five, article seven of this chapter; or

(6) Upon a finding that there is no reasonable likelihood that
the conditions of neglect or abuse can be substantially corrected
in the near future and, when necessary for the welfare of the
child, terminate the parental, custodial and guardianship rights
and responsibilities of the abusing parent and commit the child to
the permanent sole custody of the nonabusing parent, if there be
one, or, if not, to either the permanent guardianship of the
department or a licensed child welfare agency. The court may award
sole custody of the child to a nonabusing battered parent. If the
court shall so find, then in fixing its dispositional order the
court shall consider the following factors:

(A) The child's need for continuity of care and caretakers;

(B) The amount of time required for the child to be integrated
into a stable and permanent home environment; and

(C) Other factors as the court considers necessary and proper.
Notwithstanding any other provision of this article, the court
shall give consideration to the wishes of a child fourteen years of
age or older or otherwise of an age of discretion as determined by
the court regarding the permanent termination of parental rights.
No adoption of a child shall take place until all proceedings for
termination of parental rights under this article and appeals
thereof are final. In determining whether or not parental rights
should be terminated, the court shall consider the efforts made by
the department to provide remedial and reunification services to
the parent. The court order shall state:

(i) That continuation in the home is not in the best interest
of the child and why;

(ii) Why reunification is not in the best interests of the
child;

(iii) Whether or not the department made reasonable efforts,
with the child's health and safety being the paramount concern, to
preserve the family, or some portion thereof, and to prevent the
placement or to eliminate the need for removing the child from the
child's home and to make it possible for the child to safely return
home, or that the emergency situation made such efforts
unreasonable or impossible; and

(iv) Whether or not the department made reasonable efforts to
preserve and reunify the family, or some portion thereof, including
a description of what efforts were made or that such efforts were
unreasonable due to specific circumstances.

(7) For purposes of the court's consideration of the
disposition custody of a child pursuant to the provisions of this
subsection, the department is not required to make reasonable
efforts to preserve the family if the court determines:

(A) The parent has subjected the child, another child of the
parent, or any other child residing in the same household or under
the temporary or permanent custody of the parent to aggravated
circumstances which include, but are not limited to, abandonment,
torture, chronic abuse and sexual abuse;

(B) The parent has:

(i) Committed murder of the child's other parent, guardian or
custodian, another child of the parent or any other child residing
in the same household or under the temporary or permanent custody
of the parent;

(ii) Committed voluntary manslaughter of the child's other
parent, guardian or custodian, another child of the parent, or any
other child residing in the same household or under the temporary
or permanent custody of the parent;

(iii) Attempted or conspired to commit such a murder or
voluntary manslaughter or been an accessory before or after the
fact to either such crime;(iv) Committed a felonious assault that results in serious
bodily injury to the child, the child's other parent, guardian or
custodian, to another child of the parent, or any other child
residing in the same household or under the temporary or permanent
custody of the parent; or

(v) Committed sexual assault or sexual abuse of the child, the
child's other parent, guardian, or custodian, another child of the
parent, or any other child residing in the same household or under
the temporary or permanent custody of the parent; or

(vi) Required by state or federal law to register with a sex
offender registry.

(C) The parental rights of the parent to another child have
been terminated involuntarily.

(b) As used in this section, “no reasonable likelihood that
conditions of neglect or abuse can be substantially corrected”
shall mean that, based upon the evidence before the court, the
abusing adult or adults have demonstrated an inadequate capacity to
solve the problems of abuse or neglect on their own or with help.
Such conditions shall be considered to exist in the following
circumstances, which shall not be exclusive:

(1) The abusing parent or parents have habitually abused or
are addicted to alcohol, controlled substances or drugs, to the
extent that proper parenting skills have been seriously impaired
and such person or persons have not responded to or followed
through the recommended and appropriate treatment which could have
improved the capacity for adequate parental functioning;

(2) The abusing parent or parents have willfully refused or
are presently unwilling to cooperate in the development of a
reasonable family case plan designed to lead to the child's return
to their care, custody and control;

(3) The abusing parent or parents have not responded to or
followed through with a reasonable family case plan or other
rehabilitative efforts of social, medical, mental health or other
rehabilitative agencies designed to reduce or prevent the abuse or
neglect of the child, as evidenced by the continuation or
insubstantial diminution of conditions which threatened the health,
welfare or life of the child;

(4) The abusing parent or parents have abandoned the child;

(5) The abusing parent or parents have repeatedly or seriously
injured the child physically or emotionally, or have sexually
abused or sexually exploited the child, and the degree of family
stress and the potential for further abuse and neglect are so great
as to preclude the use of resources to mitigate or resolve family
problems or assist the abusing parent or parents in fulfilling
their responsibilities to the child;

(6) The abusing parent or parents have incurred emotional
illness, mental illness or mental deficiency of such duration or
nature as to render such parent or parents incapable of exercising
proper parenting skills or sufficiently improving the adequacy of
such skills; or

(7) The battered parent's parenting skills have been seriously
impaired and said person has willfully refused or is presently
unwilling or unable to cooperate in the development of a reasonable
treatment plan or has not adequately responded to or followed
through with the recommended and appropriate treatment plan.

(c) The court may, as an alternative disposition, allow the
parents or custodians an improvement period not to exceed six
months. During this period the court shall require the parent to
rectify the conditions upon which the determination was based. The
court may order the child to be placed with the parents, or any
person found to be a fit and proper person, for the temporary care
of the child during the period. At the end of the period, the court
shall hold a hearing to determine whether the conditions have been
adequately improved and at the conclusion of the hearing shall make
a further dispositional order in accordance with this section.

§49-6-6. Modification of dispositional orders.

(a) Upon motion of a child, a child's parent or custodian, or
the State Department of Health and Human Resources alleging a
change of circumstances requiring a different disposition, the
court shall conduct a hearing pursuant to section two of this
article and may modify a dispositional order if the court finds by
clear and convincing evidence a material change of circumstances
and that such modification is in the child’s best interests:
Provided, That a dispositional order pursuant to subdivision (6),
subsection (a) of section five shall not be modified after the
child has been adopted, except as provided in subsections (b) and
(c) of this section. Adequate and timely notice of any motion for
modification shall be given to the child's counsel, counsel for the
child's parent or custodian and, to the state department and any
person entitled to notice and the right to be heard.The circuit
court of origin has exclusive jurisdiction over placement of the
child, and suchplacement shall not be disrupted or delayed by any
administrative process of the department.

(b) If the child is removed or relinquished from an adoptive
home or other permanent placement after the case has been
dismissed, any party with notice thereof and the receiving agency
shall promptly report the matter to the circuit court of origin,
the department, and the child's counsel, and the court shall
schedule a permanency hearing within sixty days, with notice given
to any appropriate parties and persons entitled to notice and the
right to be heard. The department shall convene a multidisciplinary
treatment team meeting within thirty days of the receipt of notice
of permanent placement disruption.

(c) If a child has not been adopted, the child or department
may move the court to place the child with a parent or custodian
whose rights have been terminated and/or restore such parent’s or
guardian’s rights. Under these circumstances, the court may order
such placement and/or restoration of a parent’s or guardian’s
rights if it finds by clear and convincing evidence a material
change of circumstances and that such placement and/or restoration
is in the child’s best interests.

§49-6-8. Permanency Hearing and Permanent Placement Review.

(a) If the court finds, pursuant to any provision of this
article, that the department is not required to make reasonable
efforts to preserve the family, then, notwithstanding any other
provision, a permanency hearing must be held within thirty days
following the entry of the court order so finding, and a permanent
placement review hearing must be conducted at least once every
three calendar months thereafter until a permanent placement is
achieved.

(a)(b) If, twelve months after receipt by the department or
its authorized agent of physical custody of a child either by a
court ordered placement or by a voluntary agreement, the department
has not placed a child in an adoptive home or placed the child with
a natural parent or placed the child in legal guardianship or
permanently placed the child with a fit and willing relative, the
department shall file with the court a petition for review of the
case court shall hold a permanency hearing. The department shall
also file a report with the courtwith the court a report detailing
the efforts that have been made to place the child in a permanent
home and copies of the child's case plan, including the permanency
plan as defined in section five, article six of this chapter. Copies
of the report shall be sent to the child's attorney and be made
available to the child's parent(s) or guardianparties and all
persons entitled to notice and the right to be heard. The court
shall schedule a hearing in chambers, giving notice and the right
to be present to: The child's attorney; the child, if twelve years
of age or older; the child's parents; the child's guardians; the
child's foster parents; any preadoptive parent or any relative
providing care for the child; any person entitled to notice and the
right to be heard; and such other persons as the court may, in its
discretion, direct. The child's presence may be waived by the
child's attorney at the request of the child or if the child would
suffer emotional harm. The purpose of the hearing is to review the
child's case, to determine whether and under what conditions the
child's commitment to the department shall continue and to determine
what efforts are necessary to provide the child with a permanent
home. In the case of a child who will not be returned to his or her
parent, the court shall consider in-state and out-of-state placement
options, and, if the court considers an out-of-state placement, the
court shall determine whether such placement is in the best
interests of the child; in the case of a child who has attained
sixteen years of age, the court shall determine the services needed
to assist the child to make the transition from foster care to
independent living. In any case in which the court decides to order
the child placed in an out-of-state facility or program it shall set
forth in the order directing the placement the reasons why the child
was not placed in an in-state facility or program. At the conclusion
of the hearing the court shall, in accordance with the best
interests of the child, enter an appropriate order containing all
such appropriate findings.of disposition. The court order shall
state: (1) Whether or not the department made reasonable efforts to
preserve the family and to prevent out-of-home placement or that the
specific situation made such effort unreasonable; (2) whether or not
the department made reasonable efforts to finalize the permanency
plan for the child; and (3) identify services required to meet the
child's needs. needs: Provided, That the department is not required
to make reasonable efforts to preserve the family if the court
determines any of the conditions set forth in subdivision (7),
subsection (a), section five of this article exist. The court shall
possess continuing jurisdiction over cases reviewed under this
section for so long as a child remains in temporary foster care or,
when a child is returned to his or her natural parents subject to
conditions imposed by the court, for so long as the conditions are
effective.

(b)(c) The state departmentcourt shall file a supplementary
petition for review with the court shall conduct another permanency
hearing within twelve months and every twelve months thereafter for
everyeach child thatwho remains in the physical or legal custody
of the State Department of Health and Human Resources until the
child is placed in an adoptive home or returned to his or her
parents or placed in legal guardianship or permanently placed with
a fit and willing relative.

(c)(d) The state department shall annually report to the court
the current status of the placements of children in permanent care
and custody of the state department who have not been adopted.

(d)(e) The state department shall file a report with the court
in any case where any child in the temporary or permanent custody
of the state receives more than three placements in one year no
later than thirty days after the third placement. This report shall
be provided to all parties and persons entitled to notice and the
right to be heard.and their counsel. Upon motion by any party, the
court shall review these placements and determine what efforts are
necessary to provide the child with a stable foster or temporarypermanent home: Provided, That no report shall be provided to any
parent or parent's attorney whose parental rights have been
terminated pursuant to this article.

(e)(f) The state department shall notify, in writing, the
court, the child, if over the age of twelve, the child's attorney,
the parents and the parents' attorney forty-eight hours prior to the
move if this is a planned move, or within forty-eight hours of the
next business day after the move if this is an emergency move,
except where such notification would endanger the child or the
foster family. This notice shall not be required in any case where
the child is in imminent danger in the child's current placement.
The location of the child need not be disclosed, but the purpose of
the move should be. This requirement is not waived by placement of
the child in a home or other residence maintained by a private
provider. No notice shall be provided pursuant to this provision to
any parent or parent's attorney whose parental rights have been
terminated pursuant to this article.

(f)(g) Nothing in this article precludes any party from
petitioning the court for review of the child's case at any time.
The court shall grant such petition upon a showing that there is a
change in circumstance or needs of the child that warrants court
review.

(h) Any foster parent, preadoptive parent or relative providing
care for the child shall be given notice of and the right to be
heard at the permanency hearing provided in this section.

§49-6-9a. Custody Ordered from Family Court in emergency
situations.

(a) Where any child in a family court proceeding is in
circumstances constituting imminent danger in the presence of a
family court judge, and the family court judge finds the child to
be neglected or abused as defined in section three, article one of
this chapter, the judge may order the child to be taken into the
emergency custody of the Department of Health and Human Resources
without the court order otherwise required by section three of this
article, if the judge finds that: (1) There exists an imminent
danger to the physical well-being of the child as defined in section
three, article one of this chapter; and (2) there are no reasonable,
available alternatives to the emergency custody order. Upon
notification by the family court judge that there exists an imminent
danger to the physical well-being of the child, the department shall
immediately respond and assist the judge in emergency placement of
the child.

(b) A child taken into emergency protective custody as subject
to imminent danger under the provisions of this section may be
housed by the department or an authorized child shelter facility if
no other reasonable alternative is available to the court. The
authority to hold the child in protective custody as provided by
this section, absent a petition and proper order granting temporary
custody pursuant to section three of this article, shall terminate
by operation of law upon expiration of ninety-six hours from the
time the child is initially taken into protective custody.

(c) The family court shall, within two judicial days of its
emergency custody order issued pursuant to this section, file a
written order specifying all the facts upon which the decision to
order the child into protective custody was based and the date, time
and place of the taking. A copy of the written order shall be
transmitted forthwith to the department, the circuit court and
prosecuting attorney of the county. Upon receiving the written
order, the circuit court shall forthwith cause to be entered and
served an administrative order in the name of and regarding the
affected child directing the department to submit to the family and
circuit court an investigative report, including whether the
department intends to file a petition under section three of this
article, or appear before the circuit court in not more than ninety-six hours from the taking at a scheduled hearing, to show cause why
the department’s investigation report has not been submitted to the
circuit court and referring family court. The scheduled hearing may
be mooted by the department’s earlier submission of the
investigative report or, in the alternative, the filing of a child
abuse and neglect petition under section three of this article. The
family court shall retain full jurisdiction of the child custody
proceedings or protective order proceedings, or both, until a child
abuse and neglect petition is filed.

(d) Any worker for the department assuming custody of a child
pursuant to the provisions of this section shall immediately notify
the child’s parents, parent, guardian or custodian of the taking of
custody of the child and the underlying reasons for taking custody,
if the whereabouts of the parents, parent, guardian or custodian are
known or can be discovered with due diligence; and if not, notice
and explanation shall be given to the child's closest relative, if
his or her whereabouts are known or can be discovered with due
diligence within a reasonable time. An inquiry shall be made of
relatives and neighbors, and if an appropriate relative or neighbor
is willing to assume custody of such child, such child shall
temporarily be placed in such custody.

(e) No child may be taken into custody under circumstances not
justified by this section or pursuant to section three of this
article without appropriate process. Any retention of a child or
order for retention of a child not complying with the time limits
and other requirements specified in this article is void by
operation of law.

§49-6-12. Improvement period in cases of child neglect or abuse

(a) A court may grant a respondent an improvement period of a
period not to exceed three months prior to making a finding that a
child is abused or neglected pursuant to section two of this article
only when:

(1) The respondent files a written motion requesting the
improvement period;

(2) The respondent demonstrates, by clear and convincing
evidence, that the respondent is likely to fully participate in the
improvement period and the court further makes a finding, on the
record, of the terms of the improvement period;

(3) In the order granting the improvement period, the court (A)
orders that a hearing be held to review the matter within sixty days
of the granting of the improvement period, or (B) orders that a
hearing be held to review the matter within ninety days of the
granting of the improvement period and that the department submit
a report as to the respondents progress in the improvement period
within sixty days of the order granting the improvement period; and

(4) The order granting the improvement period requires the
department to prepare and submit to the court an individualized
family case plan in accordance with the provisions of section three,
article six-d of this chapter;

(b) After finding that a child is an abused or neglected child
pursuant to section two of this article, a court may grant a
respondent an improvement period of a period not to exceed six
months when:

(1) The respondent files a written motion requesting the
improvement period;

(2) The respondent demonstrates, by clear and convincing
evidence, that the respondent is likely to fully participate in the
improvement period and the court further makes a finding, on the
record, of the terms of the improvement period;

(3) In the order granting the improvement period, the court (A)
orders that a hearing be held to review the matter within sixty days
of the granting of the improvement period, or (B) orders that a
hearing be held to review the matter within ninety days of the
granting of the improvement period and that the department submit
a report as to the respondent's progress in the improvement period
within sixty days of the order granting the improvement period;

(4) Since the initiation of the proceeding, the respondent has
not previously been granted any improvement period or the respondent
demonstrates that since the initial improvement period, the
respondent has experienced a substantial change in circumstances.
Further, the respondent shall demonstrate that due to that change
in circumstances the respondent is likely to fully participate in
a further improvement period; and

(5) The order granting the improvement period requires the
department to prepare and submit to the court an individualized
family case plan in accordance with the provisions of section three,
article six-d of this chapter.

(c) The court may grant an improvement period not to exceed six
months as a disposition pursuant to section five of this article
when:

(1) The respondent moves in writing for the improvement period;

(2) The respondent demonstrates, by clear and convincing
evidence, that the respondent is likely to fully participate in the
improvement period and the court further makes a finding, on the
:record, of the terms of the improvement period;

(3) In the order granting the improvement period, the court: (A) Orders that a hearing be held to review the matter within
sixty days of the granting of the improvement period, or

(B) Orders that a hearing be held to review the matter within
ninety days of the granting of the improvement period and that the
department submit a report as to the respondent's progress in the
improvement period within sixty days of the order granting the
improvement period;

(4) Since the initiation of the proceeding, the respondent has
not previously been granted any improvement period or the respondent
demonstrates that since the initial improvement period, the
respondent has experienced a substantial change in circumstances.
Further, the respondent shall demonstrate that due to that change in
circumstances, the respondent is likely to fully participate in the
improvement period; and

(5) The order granting the improvement period shall require the
department to prepare and submit to the court an individualized
family case plan in accordance with the provisions of section three,
article six-d of this chapter.

(d) When any improvement period is granted to a respondent
pursuant to the provisions of this section, the respondent shall be
responsible for the initiation and completion of all terms of the
improvement period. The court may order the state department to pay
expenses associated with the services provided during the
improvement period when the respondent has demonstrated that he or
she is unable to bear such expenses.

(e) When any improvement period is granted to a respondent
pursuant to the provisions of this section, the respondent shall
execute a release of all medical information regarding that
respondent, including, but not limited to, information provided by
mental health and substance abuse professionals and facilities. Such
release shall be accepted by any such professional or facility
regardless of whether the release conforms to any standard required
by that facility.

(f) When any respondent is granted an improvement period
pursuant to the provisions of this article, the department shall
monitor the progress of such person in the improvement period. When
the respondent fails to participate in any service mandated by the
improvement period, the state department shall initiate action to
inform the court of that failure. When the department demonstrates
that the respondent has failed to participate in any provision of
the improvement period, the court shall forthwith terminate the
improvement period.

(g) A court may extend any improvement period granted pursuant
to subsections (b) or (c) of this section for a period not to exceed
three months when the court finds that the respondent has
substantially complied with the terms of the improvement period;
that the continuation of the improvement period will not
substantially impair the ability of the department to permanently
place the child; and that such extension is otherwise consistent
with the best interest of the child.

(h) Upon the motion by any party, the court shall terminate any
improvement period granted pursuant to this section when the court
finds that respondent has failed to fully participate in the terms
of the improvement period.

(i) This section may not be construed to prohibit a court from
ordering a respondent to participate in services designed to reunify
a family or to relieve the department of any duty to make reasonable
efforts to reunify a family required by state or federal law.

(j) Any hearing scheduled pursuant to the provisions of this
section may be continued only for good cause upon a written motion
properly served on all parties. When a court grants such
continuance, the court shall enter an order granting the continuance
which shall specify a future date when the hearing will be held.

(k) Any hearing to be held at the end of an improvement period
shall be held as nearly as practicable on successive days and shall
be held as close in time as possible after the end of said
improvement period and shall be held no later than sixty days of the
termination of such improvement period.

(l) Notwithstanding any other provision of this section, no
combination of any improvement periods or extensions thereto may
cause a child to be in foster care more than fifteen months of the
most recent twenty-two months, unless the court finds compelling
circumstances by clear and convincing evidence that it is in the
child’s best interests to extend the time limits contained in this
paragraph.

§49-6D-3. Unified child and family case plans.

(a) The Department of Health and Human Resources shall develop
a unified child and family case plan for every family wherein a
person has been referred to the department after being allowed an
improvement period or where the child is placed in foster careunder
the provisions of section twelve, article six of this chapter. The
case plan must be filed within sixty days of the child coming into
foster care or within thirty days of the inception of the
improvement period, whichever occurs first. The department may also
prepare a family case plan for any person who voluntarily seeks
child abuse and neglect services from the department, or who is
referred to the department by another public agency or private
organization. The family case plan is to clearly set forth an
organized, realistic method of identifying family problems and the
logical steps to be used in resolving or lessening those problems.The case plan provisions shall comply with federal law and the rules
of procedure for child abuse and neglect proceedings.Every family
case plan prepared by the department shall contain the following:

(1) A listing of specific, measurable, realistic goals to be
achieved;

(2) An arrangement of goals into an order of priority;

(3) A listing of the problems that will be addressed by each
goal;

(4) A specific description of how the assigned caseworker or
caseworkers and the abusing parent, guardian or custodian will
achieve each goal;

(5) A description of the departmental and community resources
to be used in implementing the proposed actions and services;

(6) A list of the services, including time-limited
reunification services as defined in section three, article one of
this chapter, which will be provided;

(7) Time targets for the achievement of goals or portions of
goals;

(8) An assignment of tasks to the abusing or neglecting parent,
guardian or custodian, to the caseworker or caseworkers and to other
participants in the planning process;

(9) A designation of when and how often tasks will be
performed; and

(10) The safety of the placement of the child and plans for
returning the child safely home.

(b) In cases where the family has been referred to the
department by a court under the provisions of this chapter, and
further action before the court is pending, the family case plan
described in subsection (a) of this section shall be furnished to
the court within thirty days after the entry of the order referring
the case to the department, and shall be available to counsel for
the parent, guardian or custodian and counsel for the child or
children. The department shall encourage participation inconvene a
multidisciplinary treatment team, which shall developthe
development the family case plan by the parent, guardian or
custodian. Parents, guardians, or custodians shall participate fully
in the development of the case plan, and the child shall also fully
participate if sufficiently mature and if the child is above the age
of twelve years and the child's participation is otherwise
appropriate. by the child.It shall be the duty of counsel for the
participants to participate in the development of the family case
plan. The family case plan may be modified from time to time by the
department to allow for flexibility in goal development, and in each
such case the modifications shall be submitted to the court in
writing. Reasonable efforts to place a child for adoption or with a
legal guardian may be made at the same time as reasonable efforts
are being made to prevent removal or to make it possible for a child
to return safely home. The court shall examine the proposed family
case plan or any modification thereof, and upon a finding by the
court that the plan or modified plan can be easily communicated,
explained and discussed so as to make the participants accountable
and able to understand the reasons for any success or failure under
the plan, the court shall inform the participants of the probable
action of the court if goals are met or not met.

(c) (1) In addition to the family case plan provided for under
the provisions of subsection (b) of this section, the department
shall prepare, as an appendix to the family case plan, an expanded
"worker's case plan". As utilized by the department under the
provisions of this section, the worker's case plan shall consist of
the following:

(B) A prognosis for each of the goals projected in the family
case plan, assessing the capacity of the parent, guardian or
custodian to achieve the goal and whether available treatment
services are likely to have the desired outcome;

(C) A listing of the criteria to be used to assess the degree
to which each goal is attained;

(D) A description of when and how the department will decide
when and how well each goal has been attained;

(E) If possible, a listing of alternative methods and specific
services which the caseworker or caseworkers may consider using if
the original plan does not work; and

(F) A listing of criteria to be used in determining when the
family case plan should be terminated.

(2) Because the nature of the information contained in the
worker's case plan described in subdivision (1) of this subsection
may, in some cases, be construed to be negative with respect to the
probability of change, or may be viewed as a caseworker's attempt to
impose personal values into the situation, or may raise barriers of
hostility and resistance between the caseworker and the family
members, the worker's case plan shall not be made available to the
court or to persons outside of the department, but shall be used by
the department for the purpose of confirming the effectiveness of
the family case plan or for determining that changes in the family
case plan need to be made.

(d)(c) In furtherance of the provisions of this article, the
department shall, within the limits of available funds, establish
programs and services for the following purposes:

(1) For the development and establishment of training programs
for professional and paraprofessional personnel in the fields of
medicine, law, education, social work and other relevant fields who
are engaged in, or intend to work in, the field of the prevention,
identification and treatment of child abuse and neglect; and
training programs for children, and for persons responsible for the
welfare of children, in methods of protecting children from child
abuse and neglect;

(2) For the establishment and maintenance of centers, serving
defined geographic areas, staffed by multidisciplinary teams and
community teams of personnel trained in the prevention,
identification, and treatment of child abuse and neglect cases, to
provide a broad range of services related to child abuse and
neglect, including direct support and supervision of satellite
centers and attention homes, as well as providing advice and
consultation to individuals, agencies and organizations which
request such services;

(3) For furnishing services of multidisciplinary teams and
community teams, trained in the prevention, identification and
treatment of child abuse and neglect cases, on a consulting basis to
small communities where such services are not available;

(4) For other innovative programs and projects that show
promise of successfully identifying, preventing or remedying the
causes of child abuse and neglect, including, but not limited to,
programs and services designed to improve and maintain parenting
skills, programs and projects for parent self-help, and for
prevention and treatment of drug-related child abuse and neglect;
and

(5) Assisting public agencies or nonprofit private
organizations or combinations thereof in making applications for
grants from, or in entering into contracts with, the secretary of
the federal department of health and human services for
demonstration programs and projects designed to identify, prevent
and treat child abuse and neglect.

(e)(d) Agencies, organizations and programs funded to carry
out the purposes of this section shall be structured so as to comply
with any applicable federal law, any regulation of the federal
Department of Health and Human Services or the secretary thereof,
and any final comprehensive plan of the federal advisory board on
child abuse and neglect. In funding organizations, the department
shall, to the extent feasible, ensure that parental organizations
combating child abuse and neglect receive preferential treatment.

ARTICLE 7. GENERAL PROVISIONS.

§49-7-1. Confidentiality of records

(a) Except as otherwise provided in this chapter or by order of
the court, all records and information concerning a child or
juvenile which are maintained by the Division of Juvenile Services,
the Department of Health and Human Resources, a child agency or
facility, court or law-enforcement agency shall be kept confidential
and shall not be released or disclosed to anyone, including any
federal or state agency.

(b) Notwithstanding the provisions of subsection (a) of this
section or any other provision of this code to the contrary, records
concerning a child or juvenile, except adoption records juvenile
court records and records disclosing the identity of a person making
a complaint of child abuse or neglect shall be made available:

(1) Where otherwise authorized by this chapter;

(2) To:

(A) The child;

(B) A parent whose parental rights have not been terminated; or

(C) The attorney of the child or parent;

(3) With the written consent of the child or of someone
authorized to act on the child's behalf; or

(4) Pursuant to an order of a court of record: Provided, That
the court shall review such record or records for relevancy and
materiality to the issues in the proceeding and safety, and may
issue an order to limit the examination and use of the records or
any part thereof.

(c) In addition to those persons or entities to whom
information may be disclosed under subsection (b) of this section,
information related to child abuse or neglect proceedings, except
information relating to the identity of the person reporting or
making a complaint of child abuse or neglect, shall be made
available, upon request, to:

(1) Federal, state or local government entities, or any agent
of such entities, including law-enforcement agencies and prosecuting
attorneys, having a need for such information in order to carry out
its responsibilities under law to protect children from abuse and
neglect;

(2) The child fatality review team;

(3) Child abuse citizen review panels;

(4) Multidisciplinary investigative and treatment teams; or

(5) A grand jury, circuit court or family law mastercourt,
upon a finding that information in the records is necessary for the
determination of an issue before the grand jury, circuit court or
family law mastercourt.

(d) In the event of a child fatality or near fatality due to
child abuse and neglect, information relating to such fatality or
near fatality shall be made public by the Department of Health and
Human Resources and to the entities described in subsection (c)of
this section, all under the circumstances described in that
subsection: Provided, That information released by the Department of
Health and Human Resources pursuant to this subsection shall not
include the identity of a person reporting or making a complaint of
child abuse or neglect. For purposes of this subsection, “near
fatality” means any medical condition of the child which is
certified by the attending physician to be life-threatening.

(e) Except in juvenile proceedings which are transferred to
criminal proceedings, law-enforcement records and files concerning
a child or juvenile shall be kept separate from the records and
files of adults and not included within the court files. Law-enforcement records and files concerning a child or juvenile shall
only be open to inspection pursuant to the provisions of sections
seventeen and eighteen, article five of this chapter.

(f) Any person who willfully violates the provisions of this
section is guilty of a misdemeanor and, upon conviction thereof,
shall be fined not more than $1,000, or confined in the county or
regional jail for not more than six months, or be both fined and
confined. A person convicted of violating the provisions of this
section shall also be liable for damages in the amount of $300 or
actual damages, whichever is greater.

(g) Notwithstanding the provisions of this section, or any
other provision of this code to the contrary, the name and identity
of any juvenile adjudicated or convicted of a violent or felonious
crime shall be made available to the public.

§49-7-36. Quarterly status review and yearly permanency hearings.

(a) For each child who remains in foster care as a result of a
juvenile proceeding or as a result of a child abuse and neglect
proceeding, the circuit court with the assistance of the
multidisciplinary treatment team shall conduct quarterly status
reviews in order to determine the safety of the child, the
continuing necessity for and appropriateness of the placement, the
extent of compliance with the case plan, and the extent of progress
which has been made toward alleviating or mitigating the causes
necessitating placement in foster care, and to project a likely date
by which the child may be returned to and safety maintained in the
home or placed for adoption or legal guardianship.

(b) For each transitioning adult as that term is defined in
§49-2B-2(x) who remains in foster care, the circuit court shall
conduct status review hearings as described in subsection (a) of
this section once every three months until permanency is achieved.

(c) For each child or transitioning adult who continues to
remain in foster care, the circuit court shall conduct a permanency
hearing no later that twelve months after the date the child or
transitioning adult is considered to have entered foster care, and
at least once every twelve months thereafter until permanency is
achieved. For purposes of permanency planning for transitioning
adults, the circuit court shall make factual findings and
conclusions of law as to whether the department made reasonable
efforts to finalize a permanency plan to prepare a transitioning
adult for emancipation or independence or another approved
permanency option such as, but not limited to, adoption or legal
guardianship pursuant to the West Virginia Guardianship and
Conservatorship Act.

(d) Nothing in this section shall be construed to abrogate the
responsibilities of the circuit court from conducting required
hearings as provided in other provisions of this code, procedural
court rules, or setting required hearings at the same time.

NOTE: This bill is requested by the Supreme Court of Appeal’s
Court Improvement Program Oversight Board. The purpose of this
legislation is to promote the safety, well-being and timely
permanency of children in child abuse and neglect, family court
and/or juvenile cases. This bill also makes necessary amendments to
the West Virginia code for compliance with federal law or
consistency with the West Virginia Rules of Procedure for Child
Abuse and Neglect Proceedings or the Rules of Juvenile Procedure.
This bill defines “court appointed special advocate program” and
outlines the standards for the program. The bill also requires
judges to provide in the court order the reasons why a child is
being placed out-of-state as opposed to in-state. The bill
clarifies the multidisciplinary treatment planning process for
everyone and establishes a process specific to child abuse and
neglect cases as well as status offenders and delinquents. The bill
also requires attorneys appointed in child abuse and neglect cases
to have eight hours of training annually. This bill provides that
reasonable efforts to preserve the family is not required when the
person is required by law to register as a sex offender. It also
provides when a dispositional order may be modified. The bill
clarifies that the circuit court has exclusive jurisdiction over
child abuse and neglect matters. The bill provides a process for
permanency hearings and permanent placement reviews. The bill
authorizes family court to order a child be taken into emergency
custody under certain circumstances. The bill also provides
guidelines for unified child and family case plans and requires
quarterly status review hearings and yearly permanency hearings for
transitioning adults.

Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that would
be added.

§49-5d-3b, §49-5D-3c, §49-6-9a and §49-7-36 are new; therefore,
strike-throughs and underscoring have been omitted.